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DUTY OF CONFIDENTIALITY

An integral purpose of the rule of confidentiality is to encourage clients to fully and freely disclose to their attorneys all facts pertinent to their cause with absolute assurance that such information will not be used to their disadvantage. T.C. Theatre Corp.v. Warner Bros. Pictures, 113 F.Supp. 265, 269 (S.D.N.Y.'53); See also Maritrans GP, Inc. v. Pepper, Hamilton, & Scheetz, 529 Pa. 241, 254 (1992).

There is support in the law for the contention that where prior and current representations involve the same transaction, access to confidential information by the attorney in the course of the first representation is presumed. See Flatt v. Superior Court, 9 Cal.4th 275, 283 (1994); David Welch Co. v. Erskine & Tulley, 203 Cal.App.3d 884, 891 (1988) ("the actual use or misuse of confidential information is not determinative; it is the possibility of breach which controls") (emphasis added). Due to the grave risk of disclosure, some courts conclude that attorneys simply may not undertake to represent a client whose interests are adverse to those of a former client in matters substantially related to the representation of the former client. T.C. Theatre Corp., at 269.

When an attorney engages in a conflict of interest on the same matter, he or she is in a position to act on the confidential information learned from the relationship with the first client, whether or not that information is actually disclosed or acted upon in advising the new client. Maritrans GP, at 254; David Welch Co., 203 Cal.App.3d at 891. Because this position creates such a grave risk of breach of confidence, it is anomalous to find that the duty of confidentiality does not have as its direct correlation a duty of loyalty.

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